Why Israeli operations in Gaza are legally complex

A few days ago Tom Vanden Brook, a USA Today journalist contacted me regarding targeting issues the Israelis face in their Gaza operations. His article, “Biden’s told Israel to ‘operate by the rules of war.’ But a ground invasion is bloody, fraught and expensive” appeared this morning, and I highly recommend it to you. 

In his report–which covers a remarkable number of military, political and legal issues–he grimly points out a key complication in any effort to focus the use of force only on enemy combatants: “Gaza is home to 2.3 million people on a strip of land about the size of Las Vegas.”  To me, this makes it virtually impossible for civilians not to be caught in the inevitable crossfire.

Furthermore, he cites Senator Jack Reed, chairman of the Armed Services Committee, who points out that the estimated 30,000 Hamas fighters can use its “network of tunnels “to store weaponry and launch ambushes.”  He quotes Reed as saying, Hamas is “also likely to use civilians, and perhaps hostages, as shields to prevent Israeli troops from firing on their positions.”

Tom was able to use several quotes from what I gave him, but I thought I would pass you my full input.  Even at that, it is hardly a compendium of all the issues that could arise in operations in Gaza, but is more of a limited “shortburst” you may still find helpful. Here’s a lightly-edited version of what I gave him:

One of the most legally complex operations in warfare—rooting out enemy fighters operating from a densely populated urban area—is compounded in this instance by fear of harming the hostages, not to mention dealing with an enemy quite willing to use human shields, including Palestinian civilians. 

Who is targetable?

Hamas fighters are certainly lawful targets.  But in the chaos of combat determining who are terrorist fighters can be complicated, given that they may dress identically to civilians and embed themselves among noncombatants. 

It should be said, moreover, that even civilians not technically part of Hamas or other militant group might yet find themselves lawfully targetable if they nevertheless directly participate in hostilities.

According to the Department of Defense’s Law of War of War Manual, (¶ 5.8.3) taking “a direct part in hostilities extends beyond merely engaging in combat and also includes certain acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations.”  This could include a range of activities depending upon the facts.  

A few of the illustrations the DoD’s Law of War Manual uses for activities that cause a civilian to lose legal protection from attack include “providing or relaying information of immediate use in combat operations”; “emplacing mines or improvised explosive devices,” and “supplying weapons and ammunition [to fighters] in close geographic or temporal proximity to their use.”  

The Law of War Manual also has a non-exhaustive laundry list of considerations that, depending upon the facts, could lead to characterizing other civilians—and perhaps many of them—as lawfully targetable because their activities amount to directly participating in hostilities. 

The proportionality rule

Of course, when engaging lawful targets Israeli commanders must still adhere to the proportionality rule. As the DoD’s Law of War Manual puts it (¶2.4.1.2): “this principle creates obligations to refrain from attacks in which the expected harm incidental to such attacks would be excessive in relation to the concrete and direct military advantage anticipated to be gained and to take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack.”  

The word “excessive” is important because it clarifies that the law of armed conflict accepts that civilian casualties can and likely often will occur in lawful attacks.  Put another way, simply because some—and perhaps many— civilian casualties occur does not necessarily mean the law of war has been violated.  

Notably, the DoD Manual explains (¶ 5.12.3) that “]d]etermining whether the expected incidental harm is excessive does not necessarily lend itself to quantitative analysis because the comparison is often between unlike quantities and values.”  It also points out that commanders may consider those “civilians at risk if the attack is not taken.”  The last point is certainly a factor with Israeli civilians under continuing bombardment, and hostages still at deadly risk—time is of the essence. 

Furthermore, the DoD Manual says (¶ 5.6.7.3): 

“Military advantage” refers to the advantage anticipated from an attack when considered as a whole, and not only from its isolated or particular parts.  Similarly, “military advantage” is not restricted to immediate tactical gains, but may be assessed in the full context of the war strategy. 

“Military advantage” and the “very survival of a State” 

As the President said, Hamas’ “stated purpose for existing is the destruction of the State of Israel and the murder of Jewish people.”  Given such genocidal statements, Israel may reasonably consider itself in a conflict where the “military advantage” it is seeking in its “war strategy” is nothing less than saving its state and its people from annihilation. 

Such a rationale resonates in the law. For example, the 1996 International Court of Justice’s advisory opinion on the legality of nuclear weapons found that the court “cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” 

Thus, what might be an “excessive” loss of civilians in one sort of conflict, may not be unlawfully excessive in an existential fight for the very survival of a nation and its people. To be clear, this isn’t carte blanche; the proportionality analysis must take place and each target must be a bona fide military objective.  

Lawful military objectives hidden within civilian objectives/dual-use targets

However, it should also be recognized that lawful military objectives—to include enemy fighters—may be deliberately hidden within what would appear to be civilian residences or businesses in order to make it appear that if an attack takes place, it is an unlawful one.   

Additionally, lawful military objectives can include ‘dual use’ facilities that both civilians and militants use.  It could be the case that attacking the facility may yield such a significant military advantage that incidental harm to civilians would not be reasonably considered excessive. 

Regardless, commanders still must take all feasible actions to protect civilians and civilian objects.  At the same time, it’s important to remember what is feasible depends upon, as DoD says (¶ 5.2.3.2), what is “practicable or practically possible, taking into account all circumstances ruling at the time.” 

Again, in a densely populated urban area where the enemy hides among—and behind—civilians and in—and below—civilian buildings, the feasible options may be very limited, so evacuation to the southern part of Gaza, however difficult, could be the best option for civilians. 

Still, even the most legally scrupulous military operation in an area like Gaza carries very serious potential for significant unintended civilian casualties.

In 2017 when the U.S. was aiding Iraqi forces retaking the city of Mosul from the Islamic State, I wrote a post entitled, Sadly, we have to expect more civilian casualties if ISIS is to be defeated. As airstrikes into Gaza continue and Israeli forces begin to make ground raids into the territory, I see many of the same issues.  Here’s part of what I said then:

Retaking a densely-populated city like Mosul is extraordinarily difficult.  Indeed, chaotic urban combat is one of the toughest challenges for any military, as enemy fighters can take advantage of a city’s labyrinths to infest battlespaces with booby-traps and ambushes, and – most malevolently – it allows them to readily hide among civilians.  This and more is exactly what is happening in Mosul.  A coalition spokesman explained that ISIS was using “inhuman tactics [of] terrorizing civilians, using human shields, and fighting from protected sites such as schools, hospitals, religious sites and civilian neighborhoods.”

I believe the Israelis have an even tougher challenge than did the Iraqis in Mosul.  In Gaza, hostages from 25 countries are being used illegally and immorally – yet effectively – as human shields. Hamas terrorists have had years to build a maze of tunnels beneath civilian structures to shield themselves at the expense of the Palestinian people. 

Hamas’ cruelty towards Palestinians

If you think Hamas’ depravity may have peaked, you’d be wrong.  This time it is aimed against the Palestinian people.  As I’ve said in a previous post, Hamas’ strategy is to intentionally put Gaza residents in peril.  Now we learn from the New York Times that “[a]s supplies of virtually every basic human necessity dwindle in Gaza, one group in the besieged enclave remains well-stocked: Hamas.” 

The Times reports that Arab and Western officials told them “Hamas has hundreds of thousands of gallons of fuel for vehicles and rockets; caches of ammunition, explosives and materials to make more; and stockpiles of food, water and medicine.”  In other words, while the UN, U.S., Egypt and Israel were “facilitating the safe passage of [humanitarian aid] shipments through the Rafah border crossing” for the Palestinian people, Hamas was sitting on enormous supplies of food, water and medicine needed by Palestinian civilians. This is raw cruelty.

When an organization like Hamas has made the annihilation of Israel its stated mission, and when it seeks to hide behind civilian men, women and, especially, children, we do well to remember that it is Hamas who are the villains, it is Hamas who is choosing to put people in danger, and it is Hamas who is willing to destroy not only the people they are against, but also those among whom they live.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

You may also want to look at Five ideas to counter Hamas’ lawfare strategy…and why